Open letter to Yingluck on lese majeste

The early signs from the Yingluck government on lese majeste reform are far from promising. In response, 112 scholars have signed this open letter (in English and Thai). The press release announcing the letter is provided below.

International concern for human rights in Thailand has been made clear in an open letter to Thailand’s Prime Minister, Ms. Yingluck Shinawatra.

112 international scholars have signed a letter calling for reviews of lese majeste and computer crimes laws in Thailand. The letter draws attention to human rights issues and the political use of lese majeste (Article 112 of the Criminal Code) and the 2007 Computer Crimes Act.

The scholars call on Ms. Yingluck’s government to review the cases of those already charged and convicted, review the laws as they are currently used, and to release on bail those prisoners currently fighting their cases in the courts.

Since 2005, the use of the lese majeste law has seen a huge increase in the number of charges coming before Thai courts. Statistics from the Office of the Judiciary show a 1,500% increase. Many of these cases are related to the political conflict that has been constant since the 2006 military coup.

Dr. Kevin Hewison, Professor of Asian Studies at the University of North Carolina at Chapel Hill and a Thai studies expert comments, “The political abuse of these laws has seen a precipitous deterioration of human rights in Thailand. Censorship of web sites, self-censorship in the media and many, many charges of disloyalty mean serious restrictions on freedom of expression.”

These draconian laws that mean that those convicted can spend up to 15 years in jail on each charge. Recent convictions have seen jail terms of 3 to 20 years. Chiranuch Premchaiporn, a webmaster for the independent Prachatai web site, returns to court this week, and faces charges that could mean 20 years in prison.

The concern expressed by these scholars from 15 countries and territories is heightened by recent decisions on prosecutions. Political activist, unionist and editor Mr. Somyos Preuksakasemsuk was detained for 84 days before being sent for prosecution on lese majeste charges. Like Mr. Somyos, American citizen Mr. Joe Gordon was held for 84 days before being charged for offences that are alleged to have taken place in the U.S.A. Bail has been refused in both cases.

Dr. Michael Connors, a Thai Studies specialist and Associate Professor at LaTrobe University observes: “The continued imprisonment without bail of those charged with lese majeste is a completely disproportionate and punitive response to an alleged crime.”

Academic freedom has been attacked. Charges and threats like those targeting Dr. Somsak Jeamteerasakul, an associate professor in the Faculty of Liberal Arts at Thammasat University, mean that scholars are unwilling to speak freely.

After several years of political conflict in Thailand, the advent of a new government offers the first opportunity in several years to review the use of these oppressive laws.

Dr. Tyrell Haberkorn, an expert on human rights issues in Thailand and a Research Fellow at the Australian National University states: “Without the urgent review of Article 112 and the 2007 Computer Crimes Act, with serious attention to possible repeal and immediate release of those currently imprisoned or detained awaiting trial, there is no hope for the consolidation of the rule of law or the development of a meaningful human rights regime in Thailand.”

39 Responses

A logical legal perspective has to take Section 112 not in isolation but as part and parcel of a review of the overall legal framework involving defamation laws. There is no question that Thai defamation laws are anachronistic and in desperate need of reform. How can any country ever reduce corruption and develop as a civil society with a criminal defamation law still on the books and in active use as an effective deterrent against reporting on corruption. If defamation laws relating to commoners were reformed first, it would be a logical extension to then consider reform of Section 112 without necessarily eliminating it, particularly when one considers that the most common defence of Section 112 is that the monarchy has no recourse to other defamation laws to defend itself. Merely restricting the way cases can be filed alone would be a significant reform that would do a great deal to protect the image of the monarchy from frivolous cases that the legal system is currently obliged to process.

But we are dreaming here. Thaksin has historically been one of the most enthusiastic abusers of defamation laws in order to attack political opponents and cover up his own tracks. It is unlikely that he would ever countenance any reform of any of the defamation laws during his sister’s watch. In addition, re-doubling the existing crack down efforts on LM is an excellent way for the Shins to disprove the detractors who like to accuse Thaksin of disloyalty and is certainly not going to lose PT any votes.

Your first paragraph is quite correct. There is definitely a need for an overhaul of Thai defamation and lese majeste laws in order to produce a state of affairs which will make the law more commensurate with freedom of speech.

However, there is a more urgent need to change the lese majeste laws now because actual people are suffering in prison because of these laws and because actual people are suffering in silence because of the intimidation these laws engender.

Your second paragraph assumes that Thaksin now has absolute and untrammelled power. I’m certain that this is not true. It never has been for anyone in the history of the world unless you believe in an all-powerful God.

I don’t think Thaksin is in this category yet.

However, I’m sure that he does have a large amount of power and influence and that he might be disposed to use laws such as lese majeste to extend that power and influence.

So, your argument gives us all the more reason to struggle against these pernicious laws to prevent them being used in the ways you think Thaksin might use them.

There is no reason why Yingluk should remove laws that she is now in a position to use for her own benefit. There is a mistaken view among many NM readers that her party was formed on the back of some kind of populist people’s revolt. Let’s be clear about this: Politics in Thailand in recent years has been characterised by an internecine struggle for power among the existing elite. The “people” have been used as mere pawns in the game, their votes a convenient additional weapon for those astute enough to use them effectively. That Yingluk’s party has adeptly used the “people’s” vote for their own ends is merely a function of her brother’s political astuteness. I expect Yingluk’s party to quickly revert to type and use these very same oppressive laws to further their own ambitions – which I doubt bare any resemblance to the aspirations of the people of Isaan and the north.

Unfortunately I dont think this government will change anything. Although Yingluck has the full support from the people that elected her but the Shinawatra is and foremost “business people”. They will not do anything drastic and bargaining is their forte so I have very little hope that this law will get remove.

With the current “we will kill to protect the King” paranoia from the Thais and the high level of fanaticism, proposal to abolish LM in this current climate is a very dangerous move. While it is true that this law is vile, too many people (who are ready to resort to violence..due to the propaganda) still cannot see it. I believe that the moment Yingluck’s government proposes that they want to abolish LM, chaos will erupt. And no, telling those brainwashed fanatics that “we have the right to propose the abolition because we are democratically elected” will be useless.

As long as this current K is still alive, there is no one but he himself who can abolish this law. If the K really wants a smooth succession and transition into true democracy, perhaps the best thing he should do is he should call to abolish this law himself….

….but I doubt whether this would happen. The consequence of abolishing this law will be severe to he himself and his family, considering what his family has done to Thailand in the past sixty something years. Nonetheless, I think letting the Thai public know about these events while the K is still alive may still save the Monarchy. If the public knows about these “hidden secrets” after he passes away and that there is no one else in his family that the Thais really care about, the outcome will be much more severe.

Of course, you should struggle to help people who are suffering under the current law and there is no need to remain silent on the LM issue. My point, though, is that I don’t think attempts to reform or abolish Section 112 will be successful in isolation and that advocates should take a holistic view of the law or a two pronged approach. I believe it will be a very long haul and that the numbers languishing in jail without bail will increase significantly before things improve.

Thaksin is not yet all powerful but will have a lot of influence in this government and probably even more in the next one, which may not be far off. He will always be dead against any of this type of legal reform and will probably use his power to block it for as long as PT or other Shinite parties are in power.

I think Kevin Hewison’s call is unjust. Considering the reports of mal treatment of folk accused under 112 and the secret nature of the trials there is no reason to believe that any person presently in jail has had justice.
The appropriate response would be to release all, both convicted and charged and then do a review of 112 and the defamation laws.
Meantime why not propose first amendment to the constitution along the lines of that in the USA?

@Ricky #8: Your “appropriate response” is unrealistic. The letter, as summarised by Kevin Hewison, is much more appropriate, because it is do-able. “A thorough review of all arrests and prosecutions of Article 112 and the 2007 Computer Crimes Act, and related provisions” would surely have to be conducted openly. The other 2 items would ensure that justice would be done.

Sorry Kevin, I know comparisons are odious, but I well recall that when Gough Whitlam became the PM of Oz all the political prisoners of the old regime i.e. draft resisters were out of jail in around 2 days. A just government here could do likewise and challenge the amazingly cruel slow judicial process which causes so much hardship. This has nothing to do with one’s attitude to the monarchy.

I’m curious to know how the learned signatories envisage a post-112 world to look and funtion? Beyond the utopian fantasies of democracy and free speech (this being Thailand after all) is it not possible, if not likely, that the removal of 112 would simply lead to extra-legal suppression of supposed offences, in turn generating greater hostility from those affected? It may be that 112 – as odious as it is – is one of the necessary planks needed at this fractious moment to mitigate all out war between the various parties involved (I’m honestly not even sure how to categorise ‘sides’ at the present time…).

I just think that it is too easy to sign these letters without giving serious consideration to the possible outcomes – the road to hell being paved with good intentions and all that…

Regarding criminal defamation please look at the latest post about Robert Amsterdam:http://www.newmandala.org/2011/08/29/amsterdam-on-thailands-dual-state/#comments
Where SJ says “he published a detailed piece about the crushing of the opposition and civil liberties by the Singapore government”. A key weapon in the crushing was the defamation cases brought by Lee Kwan Yew to bankrupt the opposition.
I doubt Yingluck or Thaksin would be happy to have Mr Amsterdam put them in the same class as the little dictator of Singapore and might be amenable to coming out as defenders of free speech. So let us openly ask them to take on this new role. Let’s face it nothing that could be said about Peur Thai and co. would be more obnoxious than the daily rubbish in the Bangkok Post.

but that is the point exactly – this is an infantile land, and the most senior of people are also the most childish. There is no ‘acceptance of criticism’ in Thailand – it is a land with an almost all-pervasive inability for self-reflection let alone self-criticism. Its all about face and the maintenance thereof.

Does anyone really think that should 112 be removed that the ‘royalists’ wouldn’t continue to supress, but using even more underhanded, unaccountable, thuggish means? The problem is not 112 but the culture that undergirds it – and that is not about to change any time soo. In fact, I would argue that it is intensifying with ever greater flows of money circulating and people desperate to get their hands upon it…

it is heart warming to see some of my fellow academics starting to come on board after five years in a new proactive manner. They will not doubt have lots to say at the coming ISEAS Singapore conference. Many of these criticised me for being “biased” (against what?) , and that as anthropologist I should be errr…be objective. In a context of oppression and lack of middleground any pretense to scientific objectivity is repugnant when people’s lives are at stake.

“Those who have the good fortune to be able to devote their lives to the study of the social world cannot stand aside, neutral and indifferent, from the struggles in which the future of that world is at stake” (Pierre Bourdieu 2003 pp 11-12).

There are a number of issues which readers should be aware:
1. LM/112 (which red shirt activists have been fighting against for four years) has nothing to do with Yingluck’s government. The pressure on her is purposeful and part of a bigger plot by the regime to fail government (we give it six months maximum), and to increase pressure through the tyranny of 112/LM. It is not, as I said all along, a new government which can change the underlying problem in the current reign. 2. witchhunts will intensify over the next few months led by a group called “Love Father Practical Action”. These are mostly younger generation falangists who will come out to monitor facebooks (make charges using 112) clean grafiti on walls, take to the streets, sing king’s song in theatres and observe, aside from wjo does not stand up, who does not sing along, etc…Be aware: They are everywhere and have the support of the emplaced amaat at the judiciary and lackies in DSI. The military of course now do not have to do anything now. The judiciary will take it from here.

Let us allow that Jim Taylor is correct and that ‘witchhunts’ will intesify in coming months. My own pessimistic prediction is that these would be much more violent in the absence of 112. Imagine for example the scenario in which rabid royalists sing anthem in theatre only for a few conscientious objectors to refuse to stand and join in. What is their fate under 112 and what might be their fate without it? Okay, we cannot be sure, but I have little doubt ‘popular justice’ – lynchings and the like – would be a very likely outcome.

Apart from the devolution to ‘popular justice’, and its inevitable acts of revenge, I just think the timing of this campaign is ill-thought and dangerous. For PT to get rid of 112 would be to sign their death-warrant. Arguably to do so would play directly into the royalists’ hands – providing them with perfect justification to return to power by whaterver means is necessary. It would bring them undone – for whatever the anti-112 sentiment is in the land, it still remains a minority view. The royalists would no-doubt rally the majority of the nation to their side and to oust PT. So the campaign is asking for PT to act suicidally.

Further, there is simply no logical reason for PT to get rid of 112. Once the succession to CP occurs, 112 will be used by PT just as its now being used by the ‘royalists’. This is the way the game works – the Reds are not yet a sufficiently weighty charachter to influence its outcome in comparison to the other key figures – military, Privy Council etc etc…

I don’t think there’s the slightest chance of Article 112 being repealed. Phuea Thai seems to be trying to out-do the Democrats in their professed devotion to the monarchy and commitment to protecting the Institution as the cornerstone of national security.

For many in the Phue Thai party, it is no doubt “business as usual” but they did come to power on the back of a populist movement – without the red shirts they would not have won the election.

However, the red shirts are not Yingluck’s to do with as she pleases. Nor are they simply Thaksin’s lackeys. Their leadership have made it very clear that they will be monitoring the government’s actions, and will without doubt cause problems for Yingluck if she seems to be short changing them. They are well organised, well supported, (not just in Isaan) and committed to achieving their goals. Watch this space, as they say!

I completely agree with the tenor of your argument. Just a couple of small points, though:

First, the Shinawatras were successful at wooing voters some years before the birth of the red shirt movement. So you could say the red shirt movement was fuelled by the Shinawatras’ success; rather than the other way around. The better argument, though, is that they’ve probably used each other – with Thaksin funding the red shirt movement to secure a wedge in parliament (for his own ends); and the red shirts making hay for as long as big daddy is prepared to pay.

Second, I agree the red shirt movement will be watching Yingluk closely. But isn’t this evidence of my original point? The Shinawatras and the red shirts make very uncomfortable bedfellows indeed. They barely trust each other. It’s a marriage of convenience. The mistrust will only deepen as the red shirt movement grows stronger and is more able to mobilise and organise independently. Eventually, the red shirts will be strong enough to choose leaders from among their own ranks. The real Mandelas, Bikos and Guevaras may be growing among them even now. In the meantime, the crown sits uncomfortably on the Shinawatras’ heads.

Having woken up the peasants for his own ends, Thaksin will find it much harder to put them to bed again. I’m not sure the red shirts are organised enough to do it for themselves just yet; but they’re getting there quickly. For now, the best that can be said of them is that they have sparked an awareness among the poor of their plight – a critical nexus along the path towards a genuine popular uprising. Until then, the Shinawatras are the more powerful of the bedfellows.

And that’s why I believe Yingluk will keep 112 in place; or at least something very like it.

Many thanks for your observations. I do accept that the red shirts were spawned by Thaksin, but by the time of the recent election, they really were a popular movement, and by no means mere pawns.

Also bear in mind that the red shirts are a broad church now. Of course Isaan is the the bedrock of their support, but it’s often overlooked, or conveniently ignored, that they have considerable support amongst the Bangkok middle and upper classes.

Whilst the so called “rural and urban poor” see the Shinawatras as the best hope for a better life, the middle/upper class supporters see the red shirts/UDD as a catalyst for disposing of Thailand’s semi feudal trappings, corruption and injustice, and bringing about a transformation into a more democratic and modern nation. I’ve spoken to many individuals from both of these backgrounds, and am confident that this is an accurate observation.

The tension you highlight between the red shirts and the Shinawatras may be more evident within the latter group, and some of the red shirt leadership, who have a very different background, and values, than the Shinawatras. Isaan is still solidly behind the Shinawatras, however .

Just to put things in perspective, civilian casualties in the southern border provinces since the separatist insurgency escalated sharply in January 2004 now exceed the combined total of civilian casualties during the Malayan Emergency (1948-1960) and the Troubles in Northern Ireland (1969-1998).

And the top priority for Yingluck and the Phuea Thai regime (forget about the UDD and Red Shirts, they’re no longer relevant) is the pardon for Thaksin, who according to Chalerm didn’t actually commit any crime because Photjaman didn’t actually buy the land. Top marks for Legal Loopholes 101.

That is no legal loophole, if you even care about some basic rules of law. What chalerm said has been repeatedly said by me for the last 2 years. You can check my earlier post if you want. This case would be a none case any where in the word. If Thaksin should be find guilty for the purchase of the lant, the court must find Pojaman and FIDF guilty first, then they should be able to go after Thaksin, not the other way around.

Tarrin -28
I think your legal skills are as dodgy as Chalerm’s – (strangely the BP recently described him as a legal expert!).
Thaksin wasn’t found guilty of purchasing the land. He was found guilty of
using his position to help her buy it.

I am no legal expert, but I think that both you and Tarrin have missed the central issue of this case. You state that Thaksin was found guilty of using his position to help his then wife buy the land, your implication perhaps being that he used his influence as Prime Minister to ensure she won the bid.

Actually, as far as I am aware, he was prosecuted simply for adding his signature to the relevant paperwork in his capacity as husband of the purchaser. This he was obliged to do, as under Thai law I don’t think a married woman can enter into a legal contract without her husband’s approval. However, by doing so he was held to have contravened the conflict of interest laws covering dealings by government ministers with State agencies. It’s hardly seems like a heinous crime, more a technical infringement, and certainly not worthy of the standard “convicted criminal”, “convicted felon” and “guilty of corruption” or “abuse of power” tags which are regularly used by his opponents to describe his currrent status in relation to this conviction.

I am of course ready to be corrected by those more knowledgeable on these matters than I am, but there must be many public figures and politicians still active in the nation’s affairs who have committed far graver crimes than this sole misdemeanour for which Thaksin has been convicted, and so publicly and repeatedly excoriated.

This topic has been addressed by Ajarn Vorajade (he is a law prof at TU. in case you didn’t know) long time ago btw, long before chalerm even make the case.

You are right that the court found Thaksin to be guilty of using his position to purchase the land, but before that, the court have to find that Pojaman was “benefit” from her husband position “first” (meaning they have to find her and FIDF guilty first) then they should have case against Thaksin. However, Thaksin was found guilty before the case between FIDF and Pojaman even settle. Where is the “due process” in this?

Furthermore, can Thaksin as a PM have influence over FIDF, an organization under BOT?

Before you called me of having dodgy law skill, why dont you at least show what you really know about the case?

Section 112 Whoever, defames, insults or threatens the King, the Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years. (Thailand Penal Code)
I believe that Thais are happy to maintain the above section. Please do not make a decision on the issue for them.

@Jakkajee #33 said: “I believe that Thais are happy to maintain [lese majeste]. Please do not make a decision on the issue for them.”

What you believe isn’t necessarily true. I am a Thai myself and I find the law absolutely ridiculous. I have asked many people who support this law to tell me how can jailing people who say the truth for fifteen years (in an extremely inhumane condition) can be justified, and no one has ever given me a good reason to justify it.

Even suppose that what the person says about the Royal is false, jailing them for fifteen years in such inhumane conditions is disproportionate to the wrong committed.

But lese majeste is uglier. Even when one asks a legitimate question he can ask in a democratic society (for example, Ajarn Giles Ungpakorn asks the question “why did not the K defend democracy? He is a constitutional Monarch, so he must defend the constitution. He must stop the army for staging the coup”), he would be deemed guilty. Guilty of what? Guilty for pointing out the obvious that what the K did is inappropriate for his role as a Constitutional Monarch?

So this is the situation where what the Royal did is clearly wrong. Everyone (who is not brainwashed) knows it is wrong, but to say it is wrong means they go to jail for fifteen years. If this is not ridiculous I don’t know what is.

@Chris B #30

Name me any country (except Thailand of course) which will jail a person for conflict of interest in the commercial transaction. Cite me the law, I want to see it. I don’t know the law in many countries. But in the British Commonwealth, I certainly know that this will never be a criminal offence. At most it would be the civil wrong and the Court will deem the transaction invalid.

Oh, and in this case Thaksin also sought advice from an expert before entering into the transaction, right? Sorry to increase your task then. Now you would need to find a country which will jail a person where that person has sought legal advice from an expert prior into entering the commercial transaction which is later proven (well, assume that it is proven) that there has been a conflict of interest. Can you find even one country which does this? Find one and we’ll talk..about whether this law is justified, with reference to the case you may find (if any) from that country, based on the facts of the case, and the reasoning given by the Courts..

Tarrin – 32
I was merely pointing out that you seemed to have got the wrong end of the stick in saying ‘If Thaksin should be found guilty for the purchase of the land…’, as of course that was not the case.
As to your question whether he could have influence over FIDF, I think the answer is ‘Yes’. I believe he was, ex officio, the chairman. Further, I would be interested to hear of any part of the government over which he, as PM, did not have influence!

The Bangkok Post claims to be “the newspaper you can trust”. After reading last Saturday’s edition, I’m not so sure.

Page 3 carried a report on a protest against an amnesty for Thaksin. The protesters displayed professionally printed posters bearing such demands as “Do not interfere with the king’s prerogatives!”, “Hands of Article 112!”, “Don’t let the guilty escape unpunished!” and “Those we respect and honour must not be violated!”

At the bottom of poster was the name of the protesting group: Khruea Khay Ratsadorn Asa Pok Pong Sathaban. The literal meaning of these words are: khruea khay (network) ratsadorn (citizens) asa (volunteer) pok pong (protect) sathaban (institution). Given their demands, that can only refer to the institution of the monarchy.

But according to the caption below the photograph, the protestors were “200 members of the Network of Citizen Volunteers to Protect the Land”. The accompanying article described them as members of the “Civil Network Against Thaksin’s Corruption Pardon” and reported that they had been joined by members of the ” Network of Citizen Volunteers to Protect the Land” who called for protection of the monarchy.

Whatever happened to honesty in translation? I suspect the Bangkok Post has been infiltrated by evil CSOC/ISOC agents as part of the infamous “Baffle the Farang” plot. As Billy Budd might say (and if he did, I’d agree with him), “I think we should be told …”

And finally, a footnote for Andrew M. Marshal: Why do these people call themselves “citizen volunteers”? Wasn’t the term of address “citizen/citoyen” first used by the evil French revolutionaries in 1789, the very people who went on to guillotine their king and queen and most of their aristocracy? Shouldn’t they call themselves “loyal subject volunteers”? Anything less reeks of lese majeste! Is this yet another cunningly concealed anti-monarchist plot?

By law, PM doesn’t have power over the central bank and this is a standard to every country in the world. Therefore, by law, Thaksin doesn’t have influence over FIDF, which is a part of BOT. There were similar cases that an individual sue FIDF on the ground that FIDF is a state organization, and for those cases the paintiff all lost the case.

Interesting thoughts, Seh Fah. “The institution” is another of those code words that proliferate in Thai politics. And maybe it is part of a “Baffle the Farang” plot as you say because to the naive and casual observer, “the institution” or even “the highest institution” could mean many things – constitutional monarchy, electoral democracy, the Buddhist religion or even the Army.

And you’re right, it does seem like a quite deliberate and misleading translation by the Bangkok Post.

As for the word and concept citizen, it had a prior history in the Athenian republic and in the Roman republic and was resurrected by the French Revolution along with a lot of other classical notions.